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LEGAL ISSUES: Testifying as an Expert

A qualified physician may also be called to testify about cases in which he or she has played no prior role. The medical provider is then called as an expert witness. For instance, an experienced physician may provide expert testimony to explain how a sexually abused child could have normal physical findings upon examination.

Qualified experts are allowed to testify regarding matters that would be outside the normal scope of knowledge and experience of the judge or jury. Most states have adopted rules similar to those used in federal courts:

If scientific, technical, or other specialized knowledge will assist the trier of fact (judge or jury) to understand the evidence or determine a fact in issue a person qualified by knowledge, skill, experience, or training, or education, may testify thereto in the form of an opinion or otherwise (Federal Rules of Evidence ~ 702).

Qualifications of an Expert Witness
Before allowing a medical provider to testify as an expert, the judge will determine whether the individual possesses the requisite knowledge, skill, experience, training, or education to assist the jury. One need not be nationally recognized, an author, or a prolific speaker on the subject to be an expert. A medical provider who treats abused children should, however, be able to convince a judge and jury that he or she possesses a combination of training, experience, and expertise to provide reliable information about child abuse that will be helpful to them in determining the truth.

As a witness, however, you must always resist testifying beyond the limits of your expertise. An attorney, even a judge, may ask you questions related to your testimony but about which you are truly not an expert. While few witnesses would intend to testify as an expert when they clearly are not, it is easier than one might think to slip into this error. Testifying is stressful. Being an expert can be flattering. It is difficult for many to say "I don't know" or "That is beyond my area of expertise." Giving a professional opinion beyond one's area of expertise is a clear violation of professional ethics.

Purpose and Scope of Expert Testimony
Experts are allowed to testify on a variety of matters to "assist the trier of fact to understand the evidence or determine a fact in issue" (Federal Rules of Evidence ~ 702). For instance, medical providers in child abuse cases may be asked to give expert opinions regarding:

The cause of injuries

The time of occurrence of observed injuries or death

The absence of medical findings

The significance of medical findings

The implications of failure to access medical care

Acceptable medical procedure

Failure to thrive

Battered Child Syndrome

Shaken Baby Syndrome

Munchausen's Syndrome by Proxy

The purpose of expert testimony is typically to educate the court about a complex medical issue. Most litigators agree that the expert will be most effective when he or she presents as a knowledgeable, unbiased professional who is not pursuing a personal agenda or advocacy position nor attempting to win for the party who employed him/her.

In order to be admissible, expert testimony must also be reliable and based on sound scientific principle. In cases in which the expert is basing his or her opinion on new scientific theory of doctrine, the most frequently used standard to determine admissibility was set forth by the United States Court of Appeals in 1923 in Frye v. the United States. The Frye test generally requires that the scientific foundation for an opinion must be generally accepted in its relevant scientific field. In 1993, the United States Supreme Court adopted a relevance standard in Daubert v. Merrell Dow Pharmaceuticals applicable to federal courts, although many state courts have adopted it. Under the Daubert principle, the court also considers the reliability of the scientific principles touted. Factors include whether the principle has been tested, the accuracy of results, whether standards for application of the principle exist, whether analysis is subjective or objective, whether the principle has been peer reviewed, and whether it is generally accepted (Frye) and consistent with proven modes of analysis. When disputed, the determination is made by the judge after conducting a hearing on the issues. Not all states use the same standard.

Experts are not allowed, however, to replace the determination of the judge or jury with their opinion. In criminal cases, experts are not allowed to testify, for example, that a victim or witness is telling the truth. A medical expert may give an opinion that a child's injuries could not have resulted from a fall, for instance, but may not give an opinion that a mother who stated a child fell, in fact, abused the child. Courts may vary in their determination of when an expert witness has gone too far. In preparing to testify, clarify this issue with counsel.

Forms of Expert Testimony
Generally, expert testimony is viewed to fall into one of three types: opinion, the hypothetical, and lecture or dissertation.

Opinion testimony goes beyond recounting what a person actually saw or heard. Courts typically apply the standard of reasonable certainty to an expert's opinion. The expert witness need not be absolutely certain; nor may the expert testify as to mere speculation. Medical expert witnesses are characteristically asked if their opinions are based on a "reasonable degree of medical certainty." Expert witnesses may rely on their observations and experiences in their practice, medical literature, training, laboratory and radiological exams, histories, physical examination, and the like to formulate their opinions. Hypothetical questions may also be posed to an expert.

Expert testimony is often used to educate the judge and jury on principles that may be unknown to them. For example, many people are not aware that in cases of child sexual abuse, normal physical findings do not rule out the possibility of abuse. A medical expert, even if he or she did not examine the child in question, may be called to testify on the meaning of normal physical findings in an examination of a child who discloses sexual abuse.

Experts may be asked to testify in the direct offer of proof as when a prosecutor presents expert testimony as part of the direct presentation of his or her case. Expert testimony can also be used in rebuttal. For instance, after the treating physician's testimony and cross examination in a child sexual abuse case that a child's examination was normal, a medical expert might be called to clarify that normal physical findings do not rule out the possibility of sexual abuse.

Preparing to Go to Court
There is no substitute for thorough preparation before testifying as an expert witness. The following steps will help you to testify in an effective, professional manner:

Be prepared to testify on your qualifications
Maintain a current, accurate vitae. Be prepared to articulate areas of expertise, educational background, specialized training received or provided, publications, and experience. Be prepared with the following information:

How many children you have treated in your career

How many similar cases you have seen

What journals you subscribe to and regularly read

How many times you have testified

If you have ever been declared an expert

If you have always testified for the prosecution, the defense, etc.

Whether you are being paid (It is perfectly acceptable to be paid, just be prepared to answer questions about it.)

Be familiar with relevant, current, well-known child abuse literature
Effective attorneys will be prepared to cross-examine you on current medical literature. While no one can be familiar with an entire body of literature, you should be familiar with all well-known and well-accepted publications. You should be able to clarify or correct the attorney's characterization of the literature and to apply or distinguish it from the case in question. Be aware of current or recently espoused theories that are unproven and be prepared to appropriately discredit them. Be prepared to "translate" complicated scientific or medical issues into lay language. The most effective expert witnesses are able to articulate the most complex concepts in a way the typical layperson can understand.

Know the case
If you are testifying about a case in which you were not involved, require that a complete file be provided for your review. The file should contain all the material necessary to form a reliable opinion. If you are the treating physician, be completely familiar with the case file. You should also be familiar with any prior statements you have made, such as grand jury testimony. There is no excuse to be surprised upon cross-examination by something in your own file. You may use the file to refresh your memory while testifying. However, doing so will typically result in the ability of the opposing attorney to review the file, including any information that may be confidential or privileged.

Consult with the attorney who calls you as a witness
It is appropriate to meet with the attorney presenting the testimony before the court appearance. If the attorney does not initiate the meeting, you should do so. You should know whether you are being called as witness of fact or an expert. You should be candid about your opinion, based on the evidence, and you should have basic knowledge about the attorney's theory of the case. It is important that the attorney not anticipate an opinion regarding the evidence that you are not prepared to give.

You can also educate the attorney about the issues in order to assist the attorney in preparation. You and the attorney should discuss any exhibits that might be used. The attorney can assist you to anticipate questions posed upon cross-examination. You can also assist the attorney to recognize weaknesses in the case and potential issues that may be raised. Clarify any and all questions about testifying before going to court.